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IN THE HIGH COURT OF SOUTH AFRICA

NORTHWEST DIVISION, MAHIKENG

 

CASE NO: CIV APP MG 05/20

 

Reportable:    YES / NO

Circulate to Judges:           YES / NO

Circulate to Magistrates:    YES / NO

Circulate to Regional Magistrates:          YES / NO

DATE:         06/02/2023

 

 

In the application between:

 

SINQOBILE EQUESTRIAN SECURITY

SERVICES (PTY) LTD                                            APPELLANT

 

and

 

MARKS KOKO LATHA                                           RESPONDENT

 

Neutral Citation:   Sinqobile Equestrian Security Services (Pty) Ltd v Marks Koko Latha (Civ App MAG 05/20) [2023] ZANWHC (06 February 2023) 

 

Coram:           SNYMAN J and MORGAN AJ

 

Heard:            16 September 2022

Delivered:       06 February 2023

 

Summary:      Civil appeal from District Magistrates Court to High Court– Law of Evidence – proof of quantum of damages– absolution from the instance- whether the appellant discharged its onus in proving prima facie claim on the merits already proved- whether the magistrate erred in granting the defendant absolution from the instance – common law and statutory law (Law of Evidence Amendment Act 45 of 1988) – the test for whether a plaintiff should survive a claim for absolution- test for absolution not met-Magistrate erred in granting absolution.

 

ORDER

 

On appeal from: Tlokwe District Court, Potchefstroom (Magistrate Monyamane sitting as a court of first instance):

 

1.          The appeal is upheld.

2.          The judgment and order of the Magistrate on Quantum is set aside.

3.          The matter is referred back to the Magistrates Court for a hearing on quantum before another presiding officer.

4.          No order as to costs.

 

This judgment was handed down electronically by circulation to the parties’ representatives via email. The date and time of hand-down are deemed to be 10:00 am on 06 February 2023.

 

 

JUDGMENT

 

 

MORGAN AJ:

 

INTRODUCTION

 

[1]             This is an appeal of the judgment and order from the Tlokwe District Court, per Magistrate Monyamane (‘the Magistrate’) in which the appellant, Sinqobile Equestrian Security Services (Pty) Ltd was the plaintiff in the Court a quo (whom I will refer to as such throughout this judgment). The plaintiff is appealing the non-award of quantum in an action that was instituted for the recovery of damages suffered as a result of a motor vehicle collision that occurred in Potchefstroom on 12 June 2016 between the plaintiff’s motor vehicle and the vehicle that was driven by the defendant, Marks Koko Latha.

 

[2]             On 13 November 2019, pursuant to hearing the matter on the merits, judgment on merits was granted in favour of the plaintiff and the matter was subsequently adjourned to a later date for a hearing on the quantum claimed by the plaintiff.

 

[3]             The total quantum of the damages claimed by the plaintiff amounted to R185 056.00.

 

[4]             The test for leave to appeal is trite and well-established. It has been held that an applicant for leave to appeal must convince the court on proper grounds that there is a reasonable prospect or realistic chance of success on appeal.[1] In other words, a mere possibility of success, an arguable case or one that is not hopeless, will not suffice. Thus, the possibility of another court holding a different view is no longer the test.[2] There must be a sound, rational basis for the conclusion that there are prospects of success on appeal. There must be a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against.[3]

 

MAGISTRATE’S FINDINGS AND ORDER

 

[5]             Notwithstanding the fact that the Magistrate was convinced that merits of the damages as alleged by the plaintiff were suffered, he found that it failed to prove the quantum of the damages on the motor vehicle, and it is for that reason that absolution from the instance was granted.

 

[6]             The Magistrate’s order on quantum reads:

 

“Absolution from the instance is granted with costs on party and party scale, which costs shall include counsel’s costs in terms of Rule 33(8)(d) of the Magistrates Courts Act 32 of 1944.”

 

[7]             Pursuant to the order, the plaintiff brought an appeal to this Court in terms of Rule 51 of the Magistrates’ Court Rules.

 

GROUNDS OF APPEAL

 

[8]             Before this Court multiple grounds of appeal were advanced. In the main, the plaintiff submitted that notwithstanding that the Magistrate found that the plaintiff’s witness was qualified and suitably trained to be admitted as an expert witness (assessor) in providing evidence on the market values or quantifying damage on motor vehicles and motor vehicle components, the Magistrate erred and misdirected himself by not accepting the expert’s uncontradicted evidence relating to the pre and post-collusion market value of the damaged motor vehicle including, the pre and post collusion market values of the extras (canopy and benches) fitted onto the motor vehicle. The other grounds of appeal are:

 

a.          The Magistrate erred and misdirected himself by not finding that Mr Sandham's methodology in assessing the damages to plaintiff’s vehicle was correct and in accordance with standard loss assessment practice.

 

b.          The Magistrate erred and misdirected himself by finding that the plaintiff has failed to prove the damages suffered both in respect of the motor vehicle itself and the extras. This finding directly contradicts the Magistrate's finding and acceptance of Mr Sandham's expertise in quantifying the damage to the motor vehicle and extras, which evidence notwithstanding scrutiny stands uncontradicted.

 

c.           The Magistrate erred and misdirected himself by finding that the Court is convinced that damages have been suffered, but that the plaintiff has failed to prove the quantum and should have held that the evidence led by Mr Sandham as a qualified assessor, whose expertise was accepted by the Court constitute prima facie evidence of the damages suffered by the plaintiff and in the absence of any evidence to contradict same from Respondent, his evidence constitutes conclusive evidence.

d.          The Magistrate erred and misdirected himself by over-emphasizing the fact that the collateral information obtained by Mr Sandham in quantifying the plaintiff’s damages was not discovered and should have held that the Respondent had been in receipt of the Rule 24(9)(a) and (b) summary of Mr Sandham's evidence since the 27th September 2017, and had ample time to request further and/or better discovery.

 

e.          The Magistrate should have held that notwithstanding the fact that collateral evidence used in Mr Sandham's assessment was not before Court, Mr Sandham's expert evidence on the quantification of the damages, his expertise having been accepted by the Court, stands as prima facie proof of the damages suffered by the plaintiff.

 

f.            The Magistrate erred and misdirected himself in finding that the collateral information and documentation was not before Court to hold that the plaintiff failed to prove its quantum whilst the Court should have held that, notwithstanding the fact that all collateral evidence might not be before Court, the direct expert evidence of Mr Sandham justifies the Court quantifying the plaintiff’s damages.

 

g.          Insofar as some of Mr Sandham's evidence might have constituted hearsay evidence, the Magistrate erred and misdirected himself by finding that section 3(1) of the Law of Evidence Amendment Act do not find application and should have held that, in exercising its discretion in terms Section 3(1) (c), it was in the interest of justice to receive the evidence.

 

h.          The Magistrate should have held that Mr Sandham was an honest and credible witness and that his evidence regarding the damages suffered by the plaintiff must be accepted.

 

i.             The Magistrate erred and misdirected himself by not accepting the plaintiff’s evidence on the pre and post collision value of the vehicle simply because of his doubts on the values placed on the canopy and benches and should, even if he was not satisfied with the valuations attached to these items, simply have adjusted the plaintiff’s quantum accordingly.

 

j.             In the absence of any evidence to the contrary, the Magistrate should have granted judgment in favour of the plaintiff in the amount of R185 056.00 (One Hundred and Eighty-Five Thousand and Fifty-Six Rand) and/or such lower amount as might have been justified based on the evidence.

 

[9]             I turn to considering the merits of the case.

 

MAGISTRATE’S FINDINGS AND ASSESSMENT OF THE PLAINTIFF’S EXPERT WITNESS AND EVIDENCE PROVIDED BY HIM ON THE COMPUTATION OF PECUNIARY LOSS ON DAMAGED MOTOR VEHICLE

 

[10]         In proving the alleged pecuniary loss on the motor vehicle, the plaintiff called one witness Mr Sandham, a motor vehicle damages assessor, to testify on its behalf in respect of the quantum of damage it suffered. The defendant did not call any witness to testify on its behalf.

 

[11]         Before the Magistrate was Mr Sandham’s Curriculum Vitae and Expert’s Report attached to the Notice filed in terms of Rule 24(9)(a) and (b) of the Magistrate Court Rules, stating with full particularity the plaintiff’s intention of calling him to testify as an expert witness.

 

[12]         In his judgment, the Magistrate stated that:

 

“the court has assessed the evidence of Mr Sandham [expert witness], and although the defence counsel challenges the fact that the Mr Sandham is not qualified as an expert to give evidence regarding damages in respect of a custom built canopy, the court is of the view that he is trained and experienced in identifying and quantifying damaged motor vehicle(s) as well as motor vehicle components, a canopy being one of them, be it custom made or not, for purposes of [the] trial.” (own emphasis)

 

[13]         From the above passage, it is abundantly clear that the Magistrate admitted Mr Sandham as an expert witness, suitably qualified to give evidence on the subject matter (pre and post collusion market values of the damaged motor vehicle) before the Court.

 

[14]         Further, the Magistrate found that there was no dispute between the assessor and the defendant in relation to his assessment and computation of the damages which the expert witness reached in his report after having subtracted the determined post-collusion market value from the determined pre-collusion market value.

 

[15]         The Magistrate also stated the correct legal position that for a plaintiff to succeed in proving the amount claimed on the damage to the motor vehicle, it is crucial that the plaintiff proves the damages. From this, it seems that the Magistrate also accepted the determined market values (both pre and post) and the difference arrived at as the correct figures. Considering this, it boggles one’s mind as to how absolution was granted notwithstanding the fact that the figures (market values) and difference required to be proved, from the plain reading of the above findings, were considered not proven by the Magistrate. It is my view that at least the amount for the difference in respect of the damage to the motor vehicle ought to have been awarded. The latter is a material misdirection worthy of being corrected.

 

[16]         Underlying this decision, the Magistrate made a material error in law in relation to the source used to compute the damages.

 

Rejecting the Trans-Union Auto Dealers’ Guide

 

[17]         Further, the Trans-Union Auto Dealers' Guide (formerly known as the Mead & McGrouther Auto Dealers' Guide) was allegedly heavily relied on as a source to determine the values utilised to compute the damages suffered. It is my view that this book is well known in this field of practise and considered reputable as other books (i.e., the Quantum YearBook[4]) utilised as a guide in quantifying damages sought to be awarded by a court.[5] It was thus incorrect for the Magistrate to totally disregard the Trans-Union Auto Dealers’ Guide on the basis that the relevant pages demonstrating the figures were not discovered or handed up during the hearing by the plaintiff. There are several reasons for this.

 

[18]         First, the Trans-Union Auto Dealers’ Guide is easily available. The Magistrate could have simply researched and studied this source independently to satisfy himself with the source and its content. The Magistrate could have also requested that copies of the pages be handed up or during the consideration of this matter prior to handing down judgment, independently researched this source and ascertained the value provided in the pleadings and reports. This book like others (i.e., the Quantum YearBook) are sources of quantifying damages (pecuniary or non-pecuniary) in matters to be adjudicated in court. Therefore, it is my view that the sudden and mere disregard of the proven amounts as stated in the pleadings (particulars of claim) and documentary evidence (experts report) simply because the book (source or authority) was not discovered or provided in court, goes against the principles of a fair hearing and interests of justice.

 

[19]         Furthermore, notwithstanding the fact that the Magistrate correctly set out the applicable legal principles in relation to the computation and assessment of damages to a motor vehicle in matters such as the present case, he failed to apply it properly and fairly in the circumstances of this case.

 

[20]         Secondly, in my view there was no need to discover the Trans-Union Auto Dealers' Guide. Discovery is applicable to evidence and documents that may be solely accessibly to one party. It is well-established that the chief aim of discovery is to ensure that before trial all parties in the proceedings are made aware of all the documentary evidence that is available and may be used during the trial.[6] Discovery requires an opponent to specify on oath the documentation in its possession or under its control which relate to the proceedings. The object of this exercise is to ensure that the issues are narrowed and the debate of points which are indisputable is eliminated. Proper discovery is also important for the administration of justice.[7]

 

[21]         By definition, a widely accessible source like a legal or factual reference guide is not subject to the rules of discovery. No one single party has sole physical control or monopoly over a publicly accessible document. Thus, in this case, the question of discovery does not arise in relation to the Trans-Union Auto Dealers Guide. It is rather odd that the Magistrate insisted on the discovery of a guide that is publicly available and he could have acquired it. There is no requirement in law that makes it mandatory for a plaintiff or defendant to discover a source of information that is publicly available and easily obtainable, such as legislation and legal or factual reference guides. It is unprecedent.

 

[22]         Asking parties to discover sources of law, such as legislation, case law and legal reference books would plainly be a waste of money and judicial resources. This is not just a consequence of judicial parsimony, but it would indeed frustrate the fairness of a trial and introduce unnecessary delays. It would frustrate, rather achieve, the attainment of justice.

 

[23]         Moreover, there is a duty incumbent upon presiding officers to proactively research and apply their minds to the matters and sources before them. Accordingly, the Magistrate is expected to have read and consider the question of quantum and research the sources of law that deal with that specific question. This would have invariably led the Magistrate to the Trans-Union Auto Dealers’ Guidebook or the Quantum Yearbook as these are seminal books dealing with the question of quantum. The Magistrate failed to do this. It was derelict of the presiding officer to not properly do his own research and verify the contents of the Trans-Union Auto Dealers’ Guide and rejecting it outright with no plausible basis.

 

[24]         It seems as if the Magistrate was happy to accept Mr Sandham’s evidence in all aspects save for only in respect of quantifying the damages to the custom-built canopy in question, which was quantified to be R17,100 (Seventeen Thousand One Hundred Rand) in the Particulars of Claim and expert’s Report before the court. Moreover, one finds that the Magistrate contradicted himself in his judgment when he stated that “the court is of the view that he [Mr Sandham] is trained and experienced in identifying and quantifying damaged motor vehicle(s) as well as motor vehicle components, a canopy being one of them, be it custom made or not, for purposes of [the] trial” and the ultimate order he made in relation to the quantum. [8]

 

[25]         Notwithstanding the evidence led and the Magistrate’s findings above, could any other Magistrate have reasonably found that the appellant did not lead proper evidence to justify an order of absolution from the instance? The simple answer is ‘No’. Absolution from the instance cannot be granted in favour of a defendant, after merits have already been determined in favour of the plaintiff. This is akin to dismissing a claim after granting the claim and is a contradiction in itself.

 

[26]         The evidence tendered by the expert, in particular the figures of the market values and the difference arrived at, were all based on oral evidence given under oath during the trial in reference to the documentary evidence (the expert report submitted) during discovery stage in the Rule 24(9)(a) and (b) Notice in preparation for trial and disclosed in the pleadings (the particulars of claim), which were all properly before the court. The oral and documentary evidence properly submitted to Court is admissible and, in my view, was sufficient to discharge the standard of proof (balance of probabilities) which rested on the plaintiff. In my view, in the absence of findings on the expert’s credibility (as in this case), renders the evidence led by the expert sufficient and admissible to justify the quantum claimed.

 

ASSESSMENT OF PECUNIARY DAMAGES IN RESPECT OF A DAMAGED MOTOR VEHICLE

 

[27]         Our courts, depending on the circumstances of each case, apply various methods in calculating the pecuniary loss for damage to a motor vehicle. In short, the general method applied in computing the quantum for pecuniary loss which a plaintiff would have suffered as a result of damage to his, her or its motor vehicle, was laid down as early as 1969 by the Appellate Division in Erasmus v Davies[9].

 

[28]         The method usually followed in computing the quantum for damage to a motor vehicle is to calculate the difference between the market value of the damaged motor vehicle pre-collusion and its market value post-collusion.

 

[29]         The other method applied, is to ascertain the reasonable costs of restoring the damaged motor vehicle to its original pre-collusion condition. However, the latter method is not appropriate to apply in an instance where the quantum finally determined would exceed the difference or diminution value (the difference between the market value of the damaged motor vehicle pre-collusion and its market value post-collusion) of the damaged motor vehicle post-collusion.

 

Incurring unnecessary costs in leading additional witnesses to tender the same evidence

 

[30]         It is my view that the plaintiff led sufficient evidence in the court a quo, to prove the quantum in its delictual claim. The Magistrate in the court a quo should have made an order to establish the quantum of the damages suffered by the plaintiff, after finding the merits of the claim in favour of the plaintiff. Litigation is costly. To have brought more witnesses to corroborate the expert’s testimony, would have in my view increased the plaintiff’s legal bill which would if it was successful, undercut it if the court granted a party and party costs order or increased the defendant’s liability if the court granted costs on a higher scale. Getting more witnesses to testify on such a straightforward and narrow point would have proven more expensive for both parties and render the award meaningless - and financially prejudicial to the plaintiff, as it may result in it spending more to obtain the order sought. Simply put the order would be worth less than the paper it is written on.

 

[31]         On the determination of the quantum for the canopy and the benches (the extras), the Magistrate stated that in proving the quantum a new price list or written quotations ought to have been provided and suppliers called to testify, seeing that the extras could not be repaired to their pre-collusion condition, could have assisted the plaintiff’s case. In this regard I beg to differ. Doing what the Magistrate required would have resulted in the incurrence of a lot of unnecessary legal costs which in my view the plaintiff would not be able to recover even in the event that it is successful. In my view the Magistrate could have done more by giving proper consideration and attaching the necessary weight to the evidence led by the expert witness in the exercise of his discretion in determining a fair quantum.

 

[32]         The quantum for the extras is easily accessible and ascertainable. Through mere research the Magistrate would have been able to exercise his discretion judiciously in determining the quantum for the extras. Again, in my view, the Magistrate could have done more to ensure a fair outcome as he is constitutionally mandated to do. But beyond fairness, the very essence of the right of access to courts and its fulfilment means that courts and judicial officers carry a legal responsibility to discharge the obligations that section 34 of the Constitution places upon them, and foremost amongst these are to convene and conduct a fair hearing, and thereafter render a fair decision.

 

[33]         The Magistrate’s order in determining quantum contradicts the order made on the merits in the same case and that to me seems like an anomaly, which clearly and unequivocally evinces that he erred. Further, the Magistrate’s findings contradict his order and reasoning for the order, which in my view constitutes a misdirection on his part.

 

[34]         In determining the quantum of damages the plaintiff suffered as a result of the damaged caused to the extras that were fitted on to the motor vehicle, there is no formulae set (as opposed to when determining the quantum of damages of a motor vehicle) maybe because the assessment of those components (extras) have in the past been evaluated as a composite item to the motor vehicle and not separately due to their attachment to the motor vehicle. Therefore, given that there is no authority laying down the formulae of determining the quantum of the damages on each fitted piece, the Magistrate ought to have exercised his discretion judiciously.

 

[35]          Furthermore, I am of the view that for the Court to determine another formula to compute the value of damage to each individual component is not required in this case and at the present moment. Simply because, the court has a discretion it can exercise in determining the quantum in such cases, otherwise if formulae were laid down it will in my view later have to be either developed for other extra compotents which normally do not come standard with a motor vehicle i.e., security lights system (white or blue lights), specialised radios, etc.)

 

ABSOLUTION FROM THE INSTANCE

 

[36]         At the conclusion of the plaintiff’s evidence, the defendant did not bring a formal application for absolution from the instance in term of the Rules of the Magistrates’ Court.

 

[37]         A finding of absolution from the instance in a civil matter may be made either (i) after the plaintiff has failed to prove his claim or (ii) after the defendant has put his or her case in defence. Ultimately, this would mean that the evidence was insufficient for the court to make a finding for the plaintiff. The purpose and effect of an order for absolution from the instance is to achieve justice for a defendant against whom no prima facie case has been established by the plaintiff. As noted by Corbett JA in Mazibuko v Santam Co Limited:

 

“If at the end of the plaintiff’s case there is evidence upon which a court, applying its mind reasonably, could hold that it had been established that either one defendant or the other defendant or both of them were legally liable (it being nevertheless uncertain as to which of the alternatives was the correct one), the Court should not grant an application for absolution at the suit of either defendant. In such a case, which is in effect a tripartite suit between three adversaries, it is, in my opinion, in the interest of justice that the case should be decided on the evidence which all the parties might choose to place before the Court, provided, as I say, that the plaintiff, when presenting his case, has laid necessary foundation for showing, prima facie, that one or the other or both of the defendants are legally liable. To hold otherwise would, in many instances, defeat the object of the Rule which permits a plaintiff who is uncertain as to the legal responsibility of two defendants to sue them both in the alternative and, in the further alternative, jointly and severally”.[10]

 

[38]         The test for absolution to be applied by a trial court at the end of a plaintiff’s case was formulated in Claude Neon Lights (SA) Ltd v Daniel, where the court stated the following:

 

“When absolution from the instance is sought at the close of plaintiff's case, the test to be applied is not whether the evidence led by plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff”.[11]

 

[39]         Absolution from the instance is an order that is used for two purposes. It is an appropriate order when, after all the evidence led, the plaintiff has failed to discharge the onus in the true sense. Its other use – the one to be discussed here – and the clear test that has to be applied relates to where, at the end of a plaintiff’s case, there is insufficient evidence upon which a court, applying its mind reasonably to the evidence, could or might (not ought or should)[12] find for him (the plaintiff).

 

[40]         The Constitutional Court in Carmichele v Minister of Safety and Security:

 

‘An order for absolution from the instance is an appropriate order to make at the end of the plaintiff’s case where a court, applying its mind reasonably to the evidence, could not or might not find for the plaintiff. The underlying reason is that it is ordinarily in the interests of justice to bring the litigation to an end in such circumstances. A determination of what is in the interests of justice necessarily involves the exercise of a discretion.’[13]

 

[41]         To escape absolution the plaintiff has to make out a prima facie case relating to all the elements of his claim.[14] (The same test applies where the defendant bears the onus and begins but fails to discharge the duty adequately to adduce evidence – except that the proper order will be judgment for the plaintiff.) This was reiterated by Harms JA in Gordon Lloyd Page & Associates v Rivera and Another:

 

‘A plaintiff has to make out a prima facie case – in the sense that there is evidence relating to all the elements of the claim – to survive absolution because without such evidence no court could find for the plaintiff (Marine & Trade Insurance Co Ltd v Van der Schyff 1972 (1) SA 26 (A) at 37G-38A; Schmidt Bewysreg 4th ed at 91-2). As far as inferences from the evidence are concerned, the inference relied upon by the plaintiff must be a reasonable one, not the only reasonable one (Schmidt at 93). The test has from time to time been formulated in different terms, especially it has been said that the court must consider whether there is “evidence upon which a reasonable man might find for the plaintiff” (Gascoyne (loc cit)) – a test which had its origin in jury trials when the “reasonable man” was a reasonable member of the jury (Ruto Flour Mills). Such a formulation tends to cloud the issue. The court ought not to be concerned with what someone else might think; it should rather be concerned with its own judgment and not that of another “reasonable” person or court. Having said this, absolution at the end of a plaintiff’s case, in the ordinary course of events, will nevertheless be granted sparingly but when the occasion arises, a court should order it in the interests of justice.’[15]

 

[42]         The appropriate test implies, that a plaintiff has to make out a prima facie case – in the sense that there is evidence relating to all the elements of the claim – to survive absolution, because without such evidence no court could find for the plaintiff and, as regards inferences from the evidence, the inference relied upon by the plaintiff must be a reasonable one, not the only reasonable one. In its evaluation towards this end, it is not necessarily correct for the court to require “evidence upon which a reasonable man might find for the plaintiff”; the court ought to be concerned with its own judgment and not that of a “reasonable” person or court.[16]

 

[43]         If at the end of the plaintiff's case there is evidence upon which a court, applying its mind reasonably, could hold that it had been established that either the one defendant or the other defendant or both of them were legally liable, and is uncertain as to which of the alternatives claims was the correct one, the court should not grant absolution at the suit of either defendant.

 

[44]         Where there is only one defendant it can be fairly inferred that, when the plaintiff has closed his case, the court has heard all the evidence that would be available against the defendant and that any further evidence would be to his detriment and that it would be unnecessary to go on if the evidence adduced was inadequate.

 

[45]         It has also been held that absolution may not be granted where the plaintiff adduces evidence on some of the issues but the onus rests on the defendant on one or more issue or issues. An order of absolution at the end of the plaintiff's case should be sought and made sparingly. It must not be made merely because the court does not believe the plaintiff’s evidence.

 

[46]         A court should be circumspect when considering an application for absolution from the instance. It is my view that absolution should be granted in exceptional circumstances and in the clearest of cases because the prejudiced suffered by the plaintiff in the event that it is granted lightly is catastrophic and sometimes irreparable if the wheels of justice move slowly and the plaintiff is indigent. On the latter score the Constitutional Court in Fose v Minister of Safety and Security[17], spoken about the need for an effective remedy when rights are breached when it said:

 

“In our context an appropriate remedy must mean an effective remedy, for without effective remedies for breach, the values underlying and the rights entrenched in the Constitution cannot properly be upheld or enhanced. Particularly in a country where so few have the means to enforce their rights through the courts, it is essential that on those occasions when the legal process does establish that an infringement of an entrenched right has occurred, it be effectively vindicated. The courts have a particular responsibility in this regard and are obliged to ‘forge new tools’ and shape innovative remedies, if needs be, to achieve this goal”.[18]

 

[47]         Further, absolution cannot be applied in isolation to the separated issues (merits and quantum) more especially after the merits of the matter has been decided in the plaintiff’s favour. It is in my view only applicable in the context of determining whether the plaintiff has made out a case on the merits or the whole case if the issues have not been separated. For example, if the Court finds in favour of the plaintiff on the merits (as in this case) it is my view that thereafter the avenue of considering bringing an application for absolution by the defendant, or consideration of this principle by the court mero motu, then falls away and absolution cannot be considered in the context of determining the quantum.

 

[48]         Simply put, neither can a defendant bring an application for absolution nor a court mero motu, in the absence of such an application consider an absolution form the instance if the plaintiff has succeeded in proving the merits of the case. In other words, absolution cannot be considered in order to determine whether a case on quantum has been made out by the plaintiff post a favourable outcome on the merits.

 

[49]         For all the reasons stated, I am of the view that the Magistrate erred and misdirected himself granting the order of absolution.

 

In the premise, I make the following order:

 

1.     The appeal is upheld.

 

2.     The whole judgment and order of the Magistrate in granting absolution from the instance is set aside.

 

3.     The matter is referred back to the Magistrates Court for hearing on quantum before another presiding officer.

 

4.     No order as to costs.

 

 

LM MORGAN AJ

 

I agree and it is so ordered.

 

FMM SNYMAN J

 

 

 

PARTIES REPRESENTATIVES

 

For the Plaintiff / Appellant:                         Adv H E de la Rey instructed by

Visagie Vos Attorneys.

 

For the Defendant / Respondent:                Adv J Scallan instructed by

van Breda & Herbst Inc.

 

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